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After days of testimony, the Hawaii House of Representatives, late last night, passed a same-sex marriage bill, 30 to 19. The bill goes back to the Senate next Tuesday and then on to the Governor for his signature. Today’s New York Times published a great overview of Hawaii’s historic relationship to the struggle for marriage equality.

HONOLULU — When, as most everyone expects, Gov. Neil Abercrombie signs into law same-sex marriage here in the coming days, it may almost seem like a routine event. Hawaii is poised to be among 16 states to approve gay marriage, along with Illinois and shortly after Minnesota, New Jersey and Rhode Island.

But the step in Hawaii has special resonance because the contemporary battle over same-sex marriage was born here two decades ago. Such marriages existed nowhere when Ninia Baehr and Genora Dancel, along with two other couples, filed what seemed like an utterly quixotic lawsuit seeking a marriage license. To near universal shock, Hawaii’s Supreme Court granted them a victory in 1993, ruling that a refusal to allow gay and lesbian couples to marry was discriminatory and illegal. Read more.

Is marriage equality subject to the seven-year itch? Are we losing interest in it? From all the evidence, it looks to me that, in Massachusetts at least, our commitment to marriage equality remains strong. In fact, in our home state, marriage of same-sex couples has become so ordinary that when you hear that someone is about to tie the knot, you can make no assumptions about the gender of the bride/groom to be.

About the only conflict there seems to be around same-sex couples marrying in Massachusetts is what to call your same-sex spouse. Though men have become quite comfortable with “husband,” two professors at Salem State University find that women are still working out the linguistic issues. For many old-time feminists, “wife” just carries too much baggage, “partner” doesn’t infer marriage, and “spouse” sounds a bit legalistic. But give us another seven years, and I’m sure we’ll find the right vocabulary!

Of course, same-sex couples in Massachusetts still face discrimination, which is why GLAD attorney Mary Bonauto and the Massachusetts Attorney General Martha Coakley are challenging the federal Defense of Marriage Act (DOMA). Those suits, which argue that DOMA is unconstitutional because it forces states to treat same-sex couples differently than heterosexual couples, got a big boost this spring when the Obama administration announced that it would not defend DOMA in court.

This was great news for same-sex families who currently are denied thousands of federal marriage benefits, including Social Security survivor benefits, the right to file joint tax returns, and the right to sponsor citizenship for foreign same-sex partners. It affirmed the administration’s commitment to supporting LGBT equality, and put into sharp relief the country’s shift in attitude since 1996, when then-President Bill Clinton signed DOMA into law. Though there remains strong opposition in many parts of the country, the latest national Washington Post-ABC poll shows a majority of Americans (53 percent) now support gay marriage. That’s up from 36 percent just five years ago.

That shift in public opinion is in no small part due to the “reality TV show” now playing in four New England states (Connecticut, Massachusetts, New Hampshire, and Vermont), Iowa, and the District of Columbia, all of which grant marriage licenses to same-sex couples. As thousands of same-sex couples have married, none of the dire predictions by the National Organization for Marriage and other right-wing evangelicals such as Pat Robertson and Chuck Colson have come true. Though some want to blame Katrina, the Great Recession, the Japanese quake/tsunami, and this year’s tornado season on the acceptance of same-sex families, most Americans find that treating people equally aligns with their most cherished values.

Of course that doesn’t mean that the road to marriage equality has been without obstacles. There were the painful setbacks in California (2008) and Maine (2009), when these states passed ballot measures that blocked previous decisions to grant same-sex couples marriage licenses. Proposition 8 in California was especially disheartening since it took away rights granted by the state’s high court, and ended a flood of same-sex marriages that had begun the previous spring. In November 2010, the anti-marriage equality movement focused on Iowa, where they convinced voters to oust three Supreme Court justices who had ruled in favor of marriage equality the previous year. New York, Rhode Island, and Maryland have all come close to passing marriage equality legislation but all have fallen short.

Nonetheless, as Massachusetts abolitionist Theodore Parker said, “the arc of the moral universe bends toward justice.” In the latest round of victories, Hawaii, Illinois, and Delaware have all passed civil union bills in their current legislative sessions. Though these laws fall short of full marriage equality, they offer same-sex couples and their children significant social and economic benefits. Additionally, in a show of bipartisan support, New York marriage equality activists have raised millions of dollars from Wall Street Republicans, enlisting their support, along with that of Mayor Bloomberg, to pressure the state’s Republican-led Senate to stop blocking marriage equality legislation. Finally, just this week, Freedom to Marry announced that Caroline Kennedy had become the 100,000 signer of a petition asking President Obama to explicitly state his support for marriage equality.

Indeed one hardly needs a poll to know that we are experiencing a seismic shift in attitudes toward LGBT people. In 2004, when same-sex couples first married in Massachusetts, Vermont was the only other state where equal rights and benefits were available to same-sex couples (through civil unions). Today, 13 states and the District of Columbia–or more than one-quarter of the United States of America—recognize same-sex couples and their families. That is astounding progress in a nation that is deeply divided on a great many social and political issues. In fact, the movement for marriage equality offers hope that our nation will find its way back to a vision of the future that truly values equality and justice for all.

Karen Kahn is co-author, with Pat Gozemba, of Courting Equality: A Documentary History of America’s First Legal Same-Sex Marriages. The former editor of Sojourner: The Women’s Forum, she also edited Frontline Feminism: Essays from Sojourner’s First Twenty Years. Kahn and Patricia Gozemba got married in September 2005; they live in Salem, Massachusetts.

The story of Edith Windsor and Thea Spyer has intrigued me since I came across their marriage announcement in the New York Times. On Nov. 12, 2010 on this blog I posted a short video of them. Check it out in the Nov. 12, 2010 blog below.

A $363,000 Tax Bill to Widow Led to Obama Shift in Defense of Marriage Act

Same-sex marriage is lawful in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia. Photographer: David McNew/Getty Images

Edith Windsor and Thea Spyer had a 40-year engagement and a two-year marriage, starting with a wedding in Canada recognized under the laws of New York, where they lived, and ending when Spyer died two years ago.

Her death triggered a $363,053 federal tax bill from which her widow would have been exempt had she been married to a man, because the federal Defense of Marriage Act bars the U.S. government from recognizing same-sex unions.

Windsor’s lawsuit challenging the constitutionality of the act was one of two cited by the Obama administration to justify its decision to stop defending the law. The decision may be a turning point in the fight over putting same-sex marriages on the same footing as heterosexual unions.

“I couldn’t believe that our government would charge me $350,000 because I was married to a woman and not a man,” Windsor, 81, said in a video statement from the American Civil Liberties Union, which is helping to represent her.

Signed into law by President Bill Clinton, the act by 2003 affected 1,138 federal programs in which marital status was a factor in eligibility for benefits, according to the government.

Windsor’s suit to reclaim Spyer’s money from the U.S. is one of two cited by Attorney General Eric Holder in a Feb. 23 announcement that President Barack Obama’s administration would not defend the law in court.

The U.S. won’t argue the act is constitutional in Windsor’s case in federal court in New York and in a Connecticut case involving seven plaintiffs, Holder said in a press statement and letter to House Speaker John Boehner, an Ohio Republican. Notices went to the judges Feb. 25.
Connecticut Case

In the Connecticut case, the seven people — each a survivor or partner of a state-recognized gay spouse — say the act deprived them of the same federal benefits afforded heterosexual couples.

Holder said the department will provide Congress “a full and fair opportunity to participate in the litigation.”

A Boehner spokesman, Kevin Smith, declined in a phone interview to say if, when or how Congress might enter the fray.

Both women in the New York case were professionals, with homes in Manhattan and Long Island. The Amsterdam-born Spyer was a clinical psychologist. Windsor, born in Philadelphia, earned a master’s degree in mathematics from New York University and built a career as a manager for International Business Machines Corp., according to a complaint filed in her case.

Their relationship began in a Greenwich Village restaurant in 1963 while both women were in their 30s. They “danced together all night,” according to the document.

Two years later, they met again on Long Island and were together from then until Spyer died.
Plan for Life

“I’d like to date for a year,” the document quotes Windsor as telling Spyer. “And if that goes the way it is now, I think I’d like to be engaged, say for a year. And if it still feels this goofy joyous, I’d like us to spend the rest of our lives together.”

An engagement that started in 1967, symbolized by a diamond pin instead of a ring that would attract notice at IBM, lasted 40 years. In 2007, with same-sex marriage then legal in Canada, they married in Toronto at ages 77 and 75.

New York, where a bill extending the right to marry to same-sex couples was defeated in 2009, recognizes such marriages that are legal in other jurisdictions, according to Windsor’s complaint.

Most recently, a New York appeals court ruled last week that the surviving husband of a same-sex couple married in Canada can inherit from the deceased man’s estate as any other spouse would.
Long Fight

Spyer, at age 45, started a three-decade battle with multiple sclerosis. Her last dances with Windsor were in an electric wheelchair. Later she developed a narrowing of a heart valve, according to the court document. She died in 2009.

Windsor paid the federal estate tax, giving her the right to ask for a refund and sue when it was denied, which she did in November.

She argues through her lawyers at Paul, Weiss, Rifkind, Wharton & Garrison and the ACLU that the government lacks both a rational basis for the marriage act “much less a compelling interest” — the legal tests for treating members of one particular group differently from others.

Four other challenges to the law are pending in federal courts in San Francisco and in Boston, where the government has already appealed Judge Joseph L. Tauro’s July 8 decision that federal regulation of marriage was an unconstitutional breach of states’ rights. Same-sex marriage is lawful in Massachusetts.

The marriage act, Tauro ruled, forced the state to “engage in invidious discrimination against its own citizens in order to receive and retain federal funds.”Six Challenges

Only six challenges to the 15-year-old law are in federal courts because nobody had standing to sue until same-sex marriage became legal in some places, said Jennifer Pizer, an attorney for the gay-rights group Lambda Legal.

Same-sex marriage is lawful in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia.

Holder, in his letter to Boehner and in his press statement, said he will tell the U.S. Court of Appeals in Boston and the judges in two San Francisco cases who are also considering the Defense of Marriage Act’s constitutionality that the more rigorous standard of constitutional review is required.

The current standard under case law in those federal circuits is that there merely be a rational basis for the law. There is no Supreme Court ruling on the marriage act that would resolve the difference.
Precedent Lacking

The appeals court that would hear the Windsor and Connecticut cases has no such precedent to follow, Holder said.

The higher standard, whether the law is substantially related to an important government objective, is used to assess the constitutionality of laws targeting minority groups that have historically suffered discrimination, the attorney general wrote.

Michael Steel, a spokesman for Boehner, said in an e-mail he questions why President Barack Obama “thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation” when “most Americans want Washington to focus on creating jobs and cutting spending.”

Texas Attorney General Greg Abbott said the law is “undoubtedly constitutional.” He accused Obama of politicizing the Justice Department, trying to empower judges to ignore democratically enacted legislation that conflicts with his ideological preference.

Supreme Court Silence

No challenge to the law has gone to the Supreme Court, and it has never said sexual orientation is cause for a heightened standard of statutory review, said Harvard Law School Professor Charles Fried, a U.S. solicitor general under Republican President Ronald Reagan.

Fried said he thinks the law is unconstitutional because marriage is an issue for states, not the federal government.

“If the states want to say this is a marriage, I don’t think the feds should be interfering with it,” he said in a Feb. 25 interview, referring to same-sex unions.

At the same time, he criticized the Obama administration for abandoning the defense of the statute.

“They should have held their noses and defended it,” Fried said. “That’s their job.”

The absence of administration support for the marriage act doesn’t mean its challengers have won.

The Justice Department will continue to enforce the law, Holder said, meaning that the administration’s abandonment of the statute’s defense shouldn’t be construed as granting same- sex couples the same federal benefits as heterosexuals.
Enforcement Requirement

The federal government is bound to enforce the law as it applies to federal rules unless it is repealed by Congress or “the judicial branch renders a definitive verdict against the law’s constitutionality,” Holder said in the letter to Boehner.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA,” Holder said.

Besides the states where gay marriage is legal, seven others recognize civil unions, under which some of the same protections afforded heterosexual couples are extended to same- sex couples.

Hawaii Governor Neil Abercrombie signed a civil-union bill into law on Feb. 23. A similar Illinois law takes effect June 1.State Constitutions

Twenty-nine states including Florida, Texas, Missouri, Virginia and Utah have constitutional amendments barring same- sex marriage, according to Lambda Legal, a proponent of equal rights for gay, lesbian and transgender people.

The Supreme Court backed gay rights in 1996 when it overturned a Colorado constitutional amendment that banned anti- discrimination protection for homosexuals, and again in 2003, when it struck down state laws criminalizing sodomy.

In both cases, Justice Anthony Kennedy’s majority opinion suggested the government needed to show more than just a rational basis for enacting the challenged law. Kennedy looms as the potential swing vote should the court take up a gay marriage case, according to Paul Smith, a Jenner & Block LLP lawyer who argued on behalf of opponents of the sodomy laws and represents some of the challengers to the federal marriage law.

“One could certainly predict that he’d be likely to apply some form of heightened scrutiny even if he might still call it rational basis,” Smith said.
Motions Due

Motions to dismiss in Windsor’s case and the Connecticut matter are due March 11.

Congress could join the case by getting permission from the court, Fried said. He said it’s unclear whether the houses of Congress could act independently of each other.

Lambda’s Pizer said the appeals court in the Boston case probably would give Congress permission to intervene so there would be a complete set of arguments for Supreme Court review.

“There will be defenders,” James Esseks, an ACLU attorney, predicted. “It just won’t be the Department of Justice.”

Julian Bond of the NAACP and Coretta Scott King have long been our allies. Important to remember this when some Black folks speak out against LGBT people and use the Bible and their social experience to continue to oppress us.

As a civil right activist, I have spent my life fighting to make ours a more just and fair society. That’s why I urge the Maryland General Assembly to support marriage equality and pass the Religious Freedom and Civil Marriage Protection Act. I firmly believe that this is a matter of civil rights, equal protection and equality. Civil rights are positive legal prerogatives — the right to equal treatment before the law. These are rights shared by everyone; there is no one in the United States who does not — or should not — share in enjoying these rights. Discrimination is wrong no matter who the victim is. We cannot move toward full human rights protection and opportunity without confronting — and ending — homophobia. For it is homophobia that is at the root of denying the freedom to marry to gays and lesbians. As my late neighbor and friend, Coretta Scott King, said in 1998:

“Homophobia is like racism and anti-Semitism and other forms of bigotry in that it seeks to dehumanize a large group of people, to deny their humanity, their dignity and personhood.”

And in 2000 she added:

“We have a lot more work to do in our common struggle against bigotry and discrimination. I say ‘common struggle’ because I believe very strongly that all forms of bigotry and discrimination are equally wrong and should be opposed by right-thinking Americans everywhere. Freedom from discrimination based on sexual orientation is surely a fundamental human right in any great democracy, as much as freedom from racial, religious, gender or ethnic discrimination.”
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Three years ago we celebrated the 40th anniversary of a case aptly called Loving v. Virginia, which struck down anti-miscegenation laws and, many years later, allowed my wife, Pam, and me to marry in the state that declares “Virginia is for lovers.” Then, as now, proponents of marriage-as-is invoked “God’s plan.” The trial judge who sentenced the Lovings said that when God created the races: “He placed them on separate continents. … The fact that he separated the races shows that he did not intend for the races to mix.”

God seems to have made room in his plan for interracial marriage. He will no doubt do the same for same-sex marriage.

Standing for the freedom to marry is about supporting all families, but I would be remiss without highlighting the impact that this inequality has on black same-sex couples, who statistically are already economically disadvantaged compared to their straight sisters and brothers. In comparison to black opposite-sex couples and white same-sex couples, black same-sex couples are more likely to parent children and earn a lower annual income. The lack of marriage rights negatively affects black same-sex couples because they are also more likely to work in the public sector, relying on health insurance that is often only afforded to married couples.

Furthermore, I firmly believe that marriage strengthens communities. Allowing more couples the opportunity to marry will strengthen the communities — and families — that most need it.

I served for 20 years in the Georgia State House and Senate; I recall difficult decisions my colleagues and I had to make, often torn between conscience and public opinion. I hope the General Assembly will stand for what’s right and bring the freedom to marry to Maryland.

Julian Bond

The writer is chairman emeritus of the NAACP National Board of Directors.

Re: FIVE TRUTHS BASED ON THE MASSACHUSETTS EXPERIENCE
Getting Beyond the Mistruths in “The Effects of Same-Sex Marriage in Massachusetts” (2008) by Brian Camenker of MassResistance

Date: February 7, 2011
I have the utmost respect and appreciation for the manner in which Senator Clayton Hee conducted the Senate Judiciary Hearing on SB 232 on January 25, 2011. Throughout the hearing, however, one senator on the Judiciary Committee and several members of the public quoted, without citing, “The Effects of Same-Sex Marriage in Massachusetts” (2008).

I am a part-time resident of Hawai’i and permanent resident of Massachusetts, as well as a researcher and writer on issues of concern to our LGBT community. I know first-hand the distortion of reality by Brian Camenker in relation to the book, Courting Equality that my spouse, Karen Kahn and I co-authored.

His Massachusetts-based group Mass Resistance has been cited for the past four years as an Anti-Gay Hate Group by the Southern Poverty Law Center, a watchdog of hate groups in the US.

In Massachusetts, Brian Camenker’s work is generally regarded as not worth addressing seriously because it is so fraught with purposeful distortions. But given its emergence again in Hawai’i at this critical moment of the consideration of several bills addressing civil unions, I want to give you a sense of the egregiousness of some of Camenker’s misinformation. To that end, I highlight just five truths that are lost in the many deliberate “mistruths” of Camenker’s “The Effects of Same-Sex Marriage in Massachusetts.”

Karen and I were married in MA in 2005. Like the nearly 19,000 married same-sex couples in our state, we are grateful to have been able to marry and to enjoy the same rights, benefits, and family protections as all other citizens of the Commonwealth. We wish the same for other LGBT couples in Hawai’i.

As you consider Civil Unions Legislation in Hawai’i, you may find this helpful.

Five Truths based on the Massachusetts Experience

1. It will NOT force any school or any teacher to teach about marriage or homosexuality

2. Books about the struggle for same sex marriage were NOT distributed at taxpayer expense to schools
3. Rates of HIV/AIDS have dropped since same-sex marriage became legal.
4. Domestic violence occurs among people in same-sex relationships at similar rates to people in heterosexual relationships.
5. The legalization of same-sex marriage has had NO EFFECT on the level of funding for programs to combat homophobia and provide respite and support for youth who may or may not be gay, but who may be subject to bullying

TRUTH #1

The First Circuit’s ruling in the Parker v. Hurley case DID NOT mandate the teaching of any subject or course material, nor did it say that the school had any duty to teach about marriage or any other subject. Rather, in response to the claims by Robert and Robin Wirthlin and David and Tonia Parker of Lexington, MA that their free exercise rights had been violated, the Court found that “the mere fact that a child is exposed on occasion in public school to a concept offensive to a parent’s religious belief does not inhibit the parent from instructing the child differently.” Overall, the decision found that including a few books with depictions of same-sex couples in the curriculum did not violate the constitutional rights of students or parents – NOT that those books must be included or taught. (Source: Nima Eshgsi, Esq. of Gay, Lesbian, Advocates and Defenders).

Brian Camenker’s assertions to the contrary do not make them true.

TRUTH # 2

Courting Equality tells the story of how LGBT people and their allies across the state used the democratic political process to expand civil rights for LGBT people. The donors thought this book would inspire teenagers to become active participants in democracy. They “offered” the book as a gift, and no high school GSA or library was forced to accept it.

Locally, Dawn Morais Webster wrote about Courting Equality in “Seeing Is Believing for LGBT Family and Friends,” Honolulu Star-Advertiser, Jan. 31, 2011.

Camenker’s statement that “homosexual groups have been using taxpayer money to distribute a large, slick hardcover book celebrating homosexual marriage titled “Courting Equality” to every school library in the state” is a lie. He demonstrated as much when he reported on Sept. 27, 2007, to his own listserv that Chip McLaughlin and Keith Maynard donated private funds to PFLAG (Parents and Friends of Lesbians and Gays) for distribution of Courting Equality (Beacon Press, 2007), to Gay/Straight Alliances (GSA) in MA public high schools and to the libraries of high schools that do not have GSAs.

TRUTH # 3
Rates of HIV/AIDS have NOT gone up since same-sex marriage became legal.
In fact, the number of new HIV cases has dropped by more than 25 percent over the past six years, the decrease accelerating since the implementation of same-sex marriage. Additional funding was available at the beginning of FY09 to address the disparate impact of HIV/AIDS in communities of color. However, since then, given current budget crises, funding for HIV/AIDS has declined by $1.75M. (Source: Kevin Cranston, Director, Bureau of Infectious Disease, Massachusetts Department of Public Health).

Again, Camenker lies when he says that “Since homosexual marriage became ‘legal’ the rates of HIV / AIDS have gone up considerably in Massachusetts. This year public funding to deal with HIV/AIDS has risen by $500,000.”

TRUTH # 4
Domestic violence occurs among people in same-sex relationships at similar rates to people in heterosexual relationships. However, many domestic violence programs are unable to work effectively with same-sex victims of domestic violence because they lack adequate training—thus, the state’s interest in providing funding. The legalizing of same-sex marriage has had no detectable effect on rates of same-sex domestic violence. (Source: Carlene Pavlos, Director, Division of Violence and Injury Prevention, Massachusetts Department of Public Health.)

Camenker offers this lie on the subject: “Given the extreme dysfunctional nature of homosexual relationships, the Massachusetts Legislature has felt the need to spend more money every year to deal with skyrocketing homosexual domestic violence. This year $350,000 was budgeted, up $100,000 from last year.”

TRUTH # 5
The legalization of same-sex marriage has had NO EFFECT on the level of funding for efforts to combat homophobia by supporting programs such as Gay-Straight Alliances and Safe Spaces for LGBT Youth. These programs, which began in the early 1990s long before same-sex marriage became legal, provide respite and support for youth who may or may not be gay, but who may be subject to slurs and hate speech from their peers or sometimes hateful adults.

Camenker, however, asserts: “Since homosexual relationships are now officially ‘normal,’ the Legislature now gives enormous tax money to homosexual activist groups. “ Not true.
Additional General Information about Anti-Gay Hate Groups and Their Message
The hateful portrayal of LGBT people promoted by Brian Camenker through his organization Mass Resistance.org has been rebutted by LGBT organizations and mainstream, predominantly heterosexual, organizations ranging from the NAACP to the ACLU.

In their Intelligence Report (Winter 2010), the Southern Poverty Law Center published an article by Evelyn Schlatter and Robert Steinback, “10 Anti-Gay Myths Debunked,” which lays bare the specious arguments promoted by anti-gay hate groups including Mass Resistance. Hateful messages hurt us all. Let’s speak truth to hate.